On August 29, 2017, the D.C. Circuit affirmed the district court’s decision dismissing a suit filed by 2012 third-party presidential candidates Gary Johnson and Jill Stein, their running mates, their campaigns, and the parties they represented (together, “Plaintiffs”) against the Commission on Presidential Debates.  Plaintiffs alleged that Johnson and Stein were improperly excluded from nationally televised general-election presidential debates in violation of the Sherman Act.

More specifically, Plaintiffs challenged a memorandum of understanding (“MOU”) stipulated to by the Obama for America and Romney for President campaigns regarding presidential debates.  The MOU provided that the Commission on Presidential Debates would host three presidential debates and one vice presidential debate.  Any candidate other than the signatories would be invited to participate in the debates only if he or she satisfied the MOU’s selection criteria, which required:  (1) that the candidate was constitutionally eligible to be president, (2) that he or she qualified to appear on enough state ballots to have at least a mathematical chance of securing an Electoral College majority in the 2012 general election, and (3) that the candidate achieved a level of support of at least 15% of the national electorate as determined by averaging the most recent results of five selected national public opinion polling organizations.  Johnson and Stein satisfied the first two of these criteria, but not the third.  (Opinion at 2-3.)

Plaintiffs alleged that the MOU was an unlawful agreement to monopolize and restrain competition in violation of sections 1 and 2 of the Sherman Act, and that they were injured “in their businesses of debating in presidential elections, participating in presidential election campaigns, and engaging in electoral politics.”  They claimed “to have lost millions of dollars’ worth of publicity, campaign contributions, and matching funds that ordinarily would follow participation in the debates, as well as the salaries they would have earned as President and Vice President if they had won.”  They sought invalidation of the selection criteria requiring 15% polling support and treble damages under section 4 of the Clayton Act.  (Opinion at 3-4.)

The district court dismissed the complaint, finding that Plaintiffs lacked Article III standing to litigate their Sherman Act claims because they were based on “wholly speculative” injuries “dependent entirely on media coverage decisions.”  The district court also found that the alleged harm (“lack of media coverage that led to low popularity”) preceded Johnson and Stein’s exclusion from the debates, and did not result from it.

The D.C. Circuit affirmed the district court’s decision dismissing the complaint.  The majority found that Plaintiffs lacked antitrust standing, and declined to reach the question of whether they possessed Article III standing.  “[A]ntitrust standing requires a plaintiff to show an actual or threatened injury of the type the antitrust laws were intended to prevent.”  (Opinion at 9 (internal quotation marks omitted).)  The court explained:

[A]ntitrust laws protect market (i.e. economic) competition. Plaintiffs, however, define their injuries as millions of dollars in free media, campaign donations, and federal matching funds—injuries to them as individual candidates in a political contest for votes. Square peg, meet round hole.

(Id. (internal citations omitted).)  The court further noted that Plaintiffs were unable “to define a commercial market in which they operate,” instead using terms like the “presidential campaign market,” “the electoral politics market,” and the “presidential candidates market.”  (Id. at 10.) It found that “the ‘market’ Plaintiffs identify is no more regulated by the antitrust laws than the ‘marketplace of ideas’ or a ‘meet market.’”  (Id.)

Judge Pillard concurred in the judgment, but disagreed “that the deficiency is only one of antitrust standing.”  Rather, Judge Pillard would have “affirm[ed] the dismissal as a failure to state a cognizable violation rather than a statutory standing shortfall.”  (Concurring Op. at 5.)